300 / 482
GAZETTE
SEPTEMBER
1989
In paragraph 15 the Court
therefore refers to " t h e
development of the pertinent
conflict rules" as frame of
reference. The law is constantly
developing and the Court wants
to keep abreast of these
developments. In order to bring
this about the Court proceeded
to develop its autonomous rule
of jurisdiction in
Ivenel,
at that
time still with reference to the
1980 Convention. This autono-
mous construction of rulqs of
law has appeared clearly from
the
Shevanai
judgment, in
which the Court does not even
bother to mention the 1980
Convention at all and limits
itself in paragraph 16 to
formulating very briefly and
concisely the jurisdictional rule
of
Ivenel.
b. When identifying the obligation
creating jurisdiction, we have
seen that in matters of labour
contracts one should find out
wha t
the
cha r ac t e r i s t ic
obligation is, which in these
cases, briefly said, is the
obligation to perform the work;
with other obligations it is the
litigious ob l i ga t i on wh i ch
creates jurisdiction.
Or could one just envisage
other contracts wh i ch are
suitable to be treated like a
labour contract? The
Shevanai
judgment leaves the door ajar
for this possibility. Does the
Court not hold in paragraph 16:
"contracts of employment
other
contracts"?
Could it be possible
that certain contracts, not being
labour contracts but showing
the same peculiarities as
enumerated by the Court (per-
manent relationship, being
placed in the framework of the
organisation) fall under the
same identification-regime? The
answer to this question cannot
easily be given but it seems that
there is some room for a
creative attorney acting on
behalf of, for instance, a small
(sub) contractor or a home-
based housewife working on an
hourly basis on her personal
compu t er
for a f ore i gn
company.
c.
In cauda venenum:
in paragraph
19 the Court, in an
obiter
dictum,
tells us what to do in
case of plurality of obligations,
which do
not ensue
from a
labour contract. The Court
teaches us, that in that case the
"main obligation" is decisive for
establishing jurisdiction.
What could that be? Are we
going to let the test of the
characteristic obligation for
establishing jurisdiction in via
the back door?
It is again the attorneys' task
to put this question to the test.
In our opinion there is some-
thing to it to work as much as
possible with the notion of
"related actions" as advocated
by Verheul and "take along" all
separate obligations. However,
in doing this the basic
assumption should always be
that there must be as much
relationship as possible between
the action and the competent
Court, for example when expert
evidence is to be given or
witnesses are to be heard. This
relation also is a principle,
frequently invoked by the Court.
One thing has become clear
out of the above: there is still a
lot of creative work for the attor-
ney with an international prac-
tice (and are we not all with
1992 before us?) to do in explor-
ing the uncharted areas of this
fascinating Convention.
•
(a) Author' translation.
* John M. Bosnak is a Dutch Lawy
& Bosnak, Arnhem, Netherlands.
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